SAZER v. MARINO

ORDERED that the order is affirmed insofar as appealed from, with costs.

Contrary to the appellant's contention, she did not establish a prima facie case for summary judgment dismissing the complaint. There are triable issues of fact concerning whether the warranty of habitability was breached (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966).

Moreover, since the appellant moved for summary judgment before the respondents had an opportunity to depose her, summary judgment dismissing the complaint would be premature at this point (see, CPLR 321 2[f]; Hoxha v. City of New York, 265 A.D.2d 379; Sazer v. Marino, 266 A.D.2d 448).

The appellant's remaining contentions are without merit.